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Gay Marriage

I guess that Alabama Supreme Court Chief Justice Roy Moore is taking his cues from Supreme Court Justice Clarence Thomas’ dissent instead of from the actual ruling in which the majority of the United States Supreme Court refused to stay a District Court ruling that allowed the state to become the 37th state to allow same – sex marriages. According to the Washington Post story, Justice Thomas wanted a stay.

The court is months away from hearing arguments in a landmark case about whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

Thomas and his pal, Justice Scalia voted for a stay. And I think he is probably right. The more states that allow marriage equality and the more couples that marry, the harder it will be to overturn any lower court rulings. It may turnout that the Supreme Court will “compromise” by letting the few states in which the Appeals Court has overturned lower court rulings that not allowing marriage equality violates either the state or U.S. Constitution, but I think they are headed for a Loving v. Virginia kind of decision.

However, Judge Moore appears to have decided that he’d rather go with Thomas than the actual ruling. Judge Moore ordered Alabama probate judges not to issue marriage licenses to same-sex couples. According to the Washington Post

Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night,Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.

We all remember when Judge Moore refuse to remove that large stone Ten Commandments monument from the courthouse. The Post explains

Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.

This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.

The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuitarguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.

He was then removed from his judgeship by the state ethics panel, but was reelected in 2012.

So as a result of Judge Moore deciding the Thomas dissent was better than the refusal to grant a stay, Alabama is in chaos. There are now counties where no marriage licenses are being issued at all, some that are just refusing same-sex couples, and others who are complying with the district court.

There will be more lawsuits as people are denied the right to marry. I wonder what Justice Thomas will do when the next appeal from Alabama reaches the Supreme Court, but I think the Alabama ethics panel will be having another hearing with Judge Moore.

My mother, Marii Hasegawa, loved Atlantic Coast Basketball, but she really loved the Tar Heels the best. Even after my sister got her Masters degree from Duke, my mother refused to root for them when they played North Carolina. I have only been to one Final Four, but it was in 1982 and I got to see North Carolina win it all.

Dean Smith, the North Carolina basketball coach, after the Tar Heels defeated Georgetown for the N.C.A.A. championship in 1982

Smith’s 879 victories rank him No. 4 among major college men’s basketball coaches, and his teams won two national championships. He turned out a host of all-Americans, most notably Michael Jordan, perhaps basketball’s greatest player, but he emphasized unselfish team play. He was a member of the Basketball Hall of Fame and a four-time national coach of the year.

Like most successful coaches, Smith was adept at diagraming plays on a blackboard. But unlike many, he ran a program that was never accused of N.C.A.A. violations, and some 97 percent of his players graduated.

President Obama awarded Smith the Presidential Medal of Freedom, the nation’s highest civilian award, in November 2013, presenting it to his wife, Linnea, who represented him at a White House ceremony.

In addition to citing Smith’s achievements on the court, Mr. Obama praised his “courage in helping to change our country” through his progressive views on race relations.

He drew on a moral code implanted by his parents in Depression-era Kansas to break racial barriers in a changing South. He challenged segregation and recruited Charlie Scott, who became the first starring black basketball player in the Atlantic Coast Conference.

“My father said, ‘Value each human being,’ ” Smith recalled in “A Coach’s Life” (1999), written with John Kilgo and Sally Jenkins. “Racial justice wasn’t preached around the house, but there was a fundamental understanding that you treated each person with dignity.”

…

Smith’s parents instilled a sense of racial tolerance in him, in a highly segregated state, long before the modern civil rights movement. His father [a high school basketball coach] put a black player named Paul Terry on his 1933-34 team, which won the state championship, though Terry was barred from playing in the state tournament by Kansas sports officials.

I remember hearing a lot of players say they made decisions well into adulthood only after consulting with Coach Smith. I remember when Michael Jordan wanted to leave UNC early some of the announcers saying that Jordan was leaving only after promising his mother and Coach Smith he would get his degree. He did.

Smith the innovator also was Smith the motivator. But he didn’t give rah-rah pep talks. He typically explained what they needed to do to win and the significance of the moment.

Once at Maryland, however, he did promise to sing “Amen” – the Terps’ late-game theme song – if the Tar Heels beat Lefty Driesell’s club. Carolina won and Smith fulfilled his vocal promise, but according to reports, he would not have won the “American Idol” title.

“He was not much as a singer,’’ recalled guard Ged Doughton.

Many will write about Dean Smith’s contributions to the game of basketball. For example, his “Four Corners” offense made the shot clock necessary. But I want to remember him for his views off the court also. In an article from 2013, Barry Jacobs wrote

Smith was periodically approached about running for the U.S. Senate from North Carolina as a Democrat. But the publicity-shy coach disdained the glad-handing involved in soliciting votes and raising money. Besides, he said, “I’d never get elected if people in North Carolina realized how liberal I am.”

He was probably right. Over the years Smith spoke in favor of a nuclear freeze and for gay rights. He opposed capital punishment. He joined a Chapel Hill street protest against the war in Vietnam. When President George H.W. Bush sent American troops into Iraq in 1991, Smith asked: “Why can’t the United States band together for some other good thing like (fighting) poverty? If you want to kill somebody, then everybody’s for it.”

My mother loved Carolina basketball and she admired Dean Smith. If they had ever met I think they would have had a lot to say to each other.

The news late last week that the Supreme Court would hear an appeal from the Sixth Circuit ruling upholding bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee brought to mind the Seventh Circuit ruling last fall written by Judge Posner. Mark Joseph Stern writing in Slate noted that suddenly there was a “race” among judges to …”write the one marriage equality opinion that history will remember.” But Stern wrote

Thursday’s ruling by 7th Circuit Judge Richard Posner, which struck down Indiana’s and Wisconsin’s gay marriage bans, is a different beast altogether. In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry. The opinion is a masterpiece of wit and logic that doesn’t call attention to—indeed, doesn’t seem to care about—its own brilliance. Posner is not writing for Justice Anthony Kennedy, or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost anyinterpretation of the equal protection clause.

I spent time this morning reading Judge Poster’s opinion. It is readable and understandable even by non-lawyers. He takes each argument made by Indiana and then Wisconsin against same-sex marriage one at a time and uses precedent, social science, and history to demolish them. Posner sets out to answer four questions.

Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society.

…

Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole?

…

Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well?

Throughout his decision, Judge Posner concentrates on children and marriage. The same persons who argue against same-sex marriage are often the same persons who argue that the state needs to encourage heterosexual marriage to provide stability to children.

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

In Indiana a same-sex couple can adopt while in Wisconsin, one member of a same-sex couple can adopt. So the logical conclusion is that marriage is just as important for same-sex couples with children as for heterosexual couples with families. And he points out that those who say that same-sex marriage will some how erode or damage heterosexual marriage need only to look at the 10 year history in Massachusetts to see that there is no impact at all.

Judge Posner’s decision is full of “zingers” most aimed with impatience at irrational argument. But he also takes aim at Justice Scalia citing his dissent in Lawrence v. Texas which struck down laws against sodomy.

…But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

In the end, Judge Posner can find no rational argument against same-sex marriage.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

The Supreme Court will hear arguments on two questions: The right to marry and the right to have out-of-state marriages recognized. Because there are four states in the appeal with four different questions, the Supreme Court in accepting the appeals wrote the questions they will try to answer. Some in the legal community were alarmed, but the New York Times quotes Harvard Law professor, Lawrence Tribe

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

I haven’t seen the appeal documents, but if the arguments are anything like those from Indiana and Wisconsin and I assume they are as those are the arguments being made nationally, the Supreme Court need to look no further than Judge Posner’s decision for answers and require the right to marry in all states. And, after all, Justice Scalia has already concluded that once sodomy laws are found unconstitutional, same-sex marriage must follow. I predict a 7-2 decision in favor of the right to marry. We will see in June if I am correct.

That’s the image that comes to mind when I think of how quickly things have moved when it comes to marriage equality. It has only been 10 years since same-sex marriage became legal in Massachusetts. And only a few years longer that that since Vermont adopted civil unions. For a while I was keeping track and blogging every time a state was added, but I just couldn’t keep up – or keep track. Now Federal benefits are available to all legally married couples regardless of the state in which they reside and the Supreme Court is letting stand Appeals Court decisions ruling prohibitions unconstitutional.

As the map of where gay marriage is legal has shifted and changed over the past few years, we’ve tracked a harder-to-measure component of the new laws: How many gay Americans live in states that allow them to marry.

In June, we anticipated that the tipping point was imminent. Based on data from Gallup surveys in 2012, a higher percentage of the country’s gay population already lived in gay-marriage-legal states than the population on the whole. With Monday’s Supreme Court non-decision, the percentage of gay Americans and Americans on the whole living in states where gay marriage is legal topped 50 percent.

I am unclear as to how Gallup determined the percentage of person living in a state who were gay or lesbian, but given the way Gallup polls, I assume it is by self-reporting in response to a question. According to the Fix, marriage equality has arrived in states with a lower population of gay residents.

So what happens next is anyone’s guess but with the growing numbers of same-sex marriages, I’m not sure how a Supreme Court ruling to the contrary could be implemented without chaos. A more likely scenario is a decision like the one in Loving v. Virginia. When the Court finally ruled on interracial marriage, the majority of states already allowed such unions.

Leading opponents of same-sex marriage vowed on Wednesday to push ahead with their legal fight, noting that several federal appeals courts had not yet ruled on the issue and that the Supreme Court could still decide to leave it up to the states.

“The marriage battle will continue,” said Jim Campbell, a senior legal counsel at Alliance Defending Freedom, a Christian legal group that has defended marriage restrictions in several states.

Opponents seem determined that each state should have a right to define its marriage laws, but that just doesn’t seem likely to me given the Loving decision as a precedent.

“If the liberals on the court had the votes to declare same-sex marriage a constitutional right, why didn’t they take any of the cases on offer Monday?” asked Brian Brown, the president of the National Organization for Marriage.

Mr. Brown also rejected the argument that, once same-sex marriages had been allowed in many states, the law could not be rolled back if the voters wanted to do so.

But most legal experts drew the opposite conclusion from Monday’s action.

“We know, from the court’s willingness Monday to allow all these marriages to go forward,” that opponents of same-sex marriage “are virtually guaranteed to lose” before the current Supreme Court, said Michael C. Dorf, a constitutional expert at Cornell Law School.

In the meanwhile, I have friends getting married, both same-sex and opposite sex. I also have friends in both categories who have or are getting divorced. All people want is to live their own lives and to have the legal protections due them. I think the opposition needs to get out of the way of the speeding locomotive.

He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

The Chief Justice should know that the President has to enforce laws until they are declared unconstitutional by a court. Thus my question.

Has the Obama administration abrogated its responsibility by continuing to enforce DOMA, while refusing to defend it in court?

Justice Antonin Scalia: “And I’m wondering if we’re living in this new world where the attorney general can simply decide, ‘Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.’ If we’re in this new world, I — I don’t want these cases like this to come before this court all the time. And I think they will come all the time if that’s … the new regime in the Justice Department that we’re dealing with.”

Deputy U.S. Solicitor General Sri Srinivasan: “Justice Scalia, one recognized situation in which an act of Congress won’t be defended in court is when the president makes a determination that the act is unconstitutional. That’s what happened here. The president made an accountable legal determination that this act of Congress is unconstitutional.”

Paul Clement, lawyer for GOP House leadership in defense of DOMA: “The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate.”

Justice Kennedy: “Suppose that constitutional scholars have grave doubts about the practice of the president signing a bill but saying that he thinks it’s unconstitutional — what do you call it, signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the president thinks the law is unconstitutional, he shouldn’t sign it, according to some view. And that’s a lot like what you’re arguing here. It’s very troubling.”

Deputy U.S. Solicitor General Sri Srinivasan: “But my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won’t defend it in litigation.”

What should a President do in a situation like this one? Does he just continue to enforce the law while trying to get Congress to repeal it as Paul Clement seems to argue. Or does he do what he did: say he thought the law was unconstitutional while both appealing and enforcing it. I suppose that he could have issued an executive order to the IRS to accept joint tax returns from all legally married couples but that would have created an even bigger uproar that going to the Supreme Court.

My point, Mr. Chief Justice, is that yes, this may be an unprecedented situation, but the job of the Supreme Court and therefore your job is to make the ultimate decision on Constitutionality. So just do your job. And by the way, where did you go to law school?

I started reading the article, The French Debate Gay Marriage, in Their Fashion, from Sunday’s New York Times thinking I wouldn’t learn much. Wrong. Turns out some of the ambivalence about gay marriage has to do with ambivalence about marriage generally.

“After May ’68, if you were modern, you didn’t get married,” said Frédéric Martel, organizer of the Rond-Point event and author of the new book, “Global Gay: How the Gay Revolution is Changing the World.” “Now we’re at a moment when we are all a bit hysterical about marriage — gay marriage. But this is really a conservative movement, about stability in society and being good parents and protecting children and becoming rather ordinary.”

Seventy percent of the French do not think it is important for couples living together to get married, according to an Insee poll in 2012. Fewer than four marriages for every 1,000 citizens were performed in France in 2011, compared with nearly eight in 1970.

The civil solidarity pact legislation, which was intended to give gay couples many of the rights of marriage, has been used overwhelmingly by straight couples as a kind of “marriage light.” It is so popular as an alternative to marriage that in 2010, there were four civil unions for every five marriages.

And then there are feminist concerns.

Some feminist lesbians think a change in the law is retrograde. In Elle, the historian Marie-Josèphe Bonnet called marriage an “instrument of domination” and same-sex marriage a project of gay men, not lesbians.

“We want to be able to exist socially as women, without being a mother or ‘the wife of,’ ” she said. Asked why she didn’t mobilize lesbians against the law, she said, “No one can be opposed to equality.”

Plus the fact that the French President, Francois Hollande, has never married.

Mr. Hollande, who made passage of the same-sex law a campaign promise, is a model for unmarrieds. He never married Ségolène Royal, the mother of his four children; she called herself “a free woman” and marriage a “bourgeois institution” when she ran unsuccessfully for president in 2007. There is no indication he intends to marry Ms. Trierweiler.

Valerie Trierweiler supports gay marriage.

When Valérie Trierweiler, the partner of France’s president, François Hollande, announced that if the law came into effect she would attend the wedding of two gay friends, Bernard Debré, a center-right deputy, wrote on his blog that she had no right to enter the debate. “She’s just the mistress of the French president,” he said.

The French support marriage but aren’t so sure about adoption by same sex couples.

While 63 percent of the French favor same-sex marriage, according to a poll by the French Institute of Public Opinion released last Saturday, 49 percent favor the right of same-sex married couples to adopt. There is less support for legalizing artificially induced pregnancies for gay couples. And some liberals and feminists consider surrogate motherhood an exploitation of poor working women by the rich.

“It introduces the notion of the child as merchandise,” the historian Max Gallo said on France Culture radio last Sunday. “You rent a belly and buy the product.”

The concerns of the French who are generally supportive are very different from those of Americans. Here it is viewed as a matter of equality and civil rights. Here in the United States, we, for the most part, still believe in marriage. We got past the era when it was an institution of our parents.

“Nobody expected this two or three months ago,” said Frigide Barjot, a flamboyant comedian leading the protest. At the rally, she read out a letter to Mr. Hollande asking him to withdraw the draft bill and hold an extended public debate.

Strongly backed by the Catholic Church hierarchy, Ms. Barjot and groups working with her mobilized churchgoing families and political conservatives as well as some Muslims, evangelicals and even homosexuals opposed to gay marriage to protest.

…

“The French are tolerant, but they are deeply attached to the family and the defense of children,” said Daniel Liechti, vice president of the National Council of French Evangelicals, which urged its members to join the march.

Opponents of gay marriage and adoption, including most faith leaders in France, have argued that the reform would create psychological and social problems for children, which they believe should trump the desire for equal rights for gay adults.

Sounds familiar.

Protesters in Paris opposing gay marriage.

I think both sides will find out what we have already learned in Massachusetts: The sky won’t fall.

2012 was a pretty good year for those of a progressive/liberal political point of view and Winning Progressive has compiled a good summary. You can read the entire article here, but I’ve pulled out some of my particular favorites – in my own order of significance.

First I have to talk about Mitch McConnell who not only lost his effort to make President Obama a one-termer, but last night voted to increase taxes. (Although since it happened after we technically went off the cliff at midnight, he will probably spin it as a decrease.) I think he an John Boehner were the big losers last year, not Mitt. Mitt is done with politics, but McConnell and Boehner have to continue to try to herd their Republican members and get re-elected.

So now to some accomplishments.

* President Obama Re-Elected With A More Diverse and Progressive Congress– The November elections saw the re-election of President Obama and the election of four new progressive U.S. Senators – Mazie Hirono (D-HI), Elizabeth Warren (D-MA), Chris Murphy (D-CT), and Tammy Baldwin (D-WI). In addition, Joe Lieberman (I-CT) is finally leaving the Senate! On the House side, the Democrats elected in November will be the first major party caucus in US history that is majority female and people of color. New House progressives will include Alan Grayson (FL-09), Jared Huffman (CA-02), Dan Kildee (MI-05), Ann McLane Kuster (NH-02), Grace Meng (NY-06), Patrick Murphy (FL-18), Rick Nolan (MN-08), Mark Pocan (WI-02), Raul Ruiz (CA-36), Carol Shea-Porter (NH-01), Mark Tacano (CA-41), Hakeem Jeffries (NY-08), and Kyrsten Simena (AZ-09). On the flip side, tea party conservatives Allen West (FL), Chip Cravaack (MN), Bobby Schilling (IL), Roscoe Bartlett (MD), Ann-Marie Buerkle (NY), Francisco Canseco (TX), and Joe Walsh (IL) were all defeat and, hopefully, will never be heard from politically again.

* LGBT Equality– 2012 was, of course, a banner year for advancing LGBT equality. For the first time in US history, equality was supported by a majority of voters facing ballot proposals approving marriage equality in Maine, Washington, and Maryland, and refusing to ban equality in Minnesota. The first openly lesbian U.S. Senator, Tammy Baldwin (D-WI) was elected in November as were a record seven openly-gay House members. President Obama publicly supported marriage equality, and anti-equality forces in Iowa failed in their effort to recall a state Supreme Court justice who declared that state’s ban on marriage equality unconstitutional. In February, a federal appellate court ruled California’s anti-marriage equality Proposition 8 unconstitutional, and two federal courts in 2012 did the same with the Defense of Marriage Act.

* Health Care Reform – In a decision that surprised many commentators, the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act, aka “ObamaCare.”And while the GOP-controlled House has voted at least 33 times to repeal ObamaCare, President Obama’s re-election in November virtually guarantees that will never occur. In implementing ObamaCare, the Obama Administration, standing up to strong opposition from conservative religious organizations, finalized rules requiring that contraception be included as a preventive health service that insurance policies must cover with no co-pay. This will help millions of women afford access to birth control and also save money by reducing unintended pregnancies.

Those are my personal big three.

Yes, there is a lot left to do and a lot that happened that I didn’t particularly think was terrific, but on the first day of a new year, we should celebrate our successes!